On 28 October 2022 new provisions relating to pre-charge bail contained in the Police, Crime, Sentencing and Courts Act 2022 ("the Act") were brought into force.
See also the Home Office circular regarding these changes here.
The key changes contained in the legislation are:
1. The removal of a statutory presumption in favour of release without bail. This reverses the amendment introduced by the Policing and Crime Act 2017. The Act now introduces a neutral position to be determined by the custody officer based on the facts of the case. Section 34 (5) and (5A) of PACE have been amended. A suspect must be released from custody with bail if it appears to the custody officer:
(a)(i) that there is a need for further investigation of any matter in connection with which the person was detained at any time during the period of detention; or
(a)(ii) that in respect of any such matter, proceedings may be taken against the person (or, if a child that he or she may be given a youth caution); and
(b) the pre-conditions for bail are satisfied.
2. A person must be released without bail if s. 34(5A) does not apply (s. 34(5) and (5AA) as amended by the PCSCA 2022, s. 45, sch. 4, part 1, para. 3.
3. Section 50A of the Police and Criminal Evidence Act 1984 ("PACE") has been amended so that custody officers, rather than Inspectors, who are independent of investigations, are able to authorise the first period of pre-charge bail (known as the Applicable Bail Period, or "ABP"), now to a period of three months in standard police cases (rather than the previous position of 28 days).
4. In Police cases, further extensions to the ABP will require approval from an officer of the rank of Inspector or above to six months. A Superintendent or above will need to authorise any extension to nine months.
5. Judicial approval will now be required to be sought to extend the ABP beyond nine months.
6. A new duty to seek the views of the Complainant on bail conditions being imposed on suspects (Section 47ZZA (2) of the PACE).
7. Pursuant to 47ZZA (5) of the PACE, if the person is granted bail subject to relevant conditions, there is a statutory requirement for the investigating officer to notify the alleged victim if it is reasonably practicable to do so.
8. In the event that the person subject to bail applies for the conditions to be varied, there is a statutory requirement for the investigating officer to seek the views of the alleged victim (Section 47ZZA (8) of the PACE) if it is reasonably practicable to do so.
9. If any of the police bail conditions are varied, the investigating officer must inform the alleged victim, if it is reasonably practicable to do so (Section 47ZZA (10) of the PACE).
10. Section 47 (6) of The Police, Crime, Sentencing and Courts Act 2022 introduces a provision for the amendment of the calculation for the period of Police detention (for the purposes of Section 41 of the PACE 1984). The amendment means that where a suspect is arrested on suspicion of failing to answer to police bail (pursuant to Section 46A, other than in a case within subsection (1ZA) or (1ZB) of that section of the PACE 1984), there is now an initial period of 3 hours beginning with the time at which the person arrives at a police station following the arrest which is not to be included as part of any period of police detention which falls to be calculated.
These changes are apparently designed to give investigating officers a greater discretion in whether a suspect should be released on bail or released under investigation. However, this increased discretion will inevitably lead to inconsistent decisions between decision making Officers and Forces. Clearer guidance is needed in order to ensure consistency of approach and to enable practitioners to properly advise and advocate on behalf of their child clients at the pre-charge stage.
A critical issue where child suspects are concerned is the problem of delay at the pre-charge stage. These reforms do nothing to assist with the unacceptable delays to police investigations often caused by the unnecessary seizure and examination of devices. Practitioners will be aware that the delays involved in device examinations are extreme at this moment in time. Because of this child suspects often cross a critical age threshold at this stage of the criminal process regardless of whether they are subject to pre-charge bail or released under investigation. More efficient investigations would lead to a reduction in unnecessary police administrative work and shorter waiting periods for child suspects.
Mishcon de Raya LLP